The rebirth of international heritage law

Intangible Cultural Heritage in International Law

By Lucas Lixinski

In June this year, developments around the Great Barrier Reef were excitedly discussed and closely scrutinized by the World Heritage Committee, a subsidiary organ of the United Nations Educational, Scientific and Cultural Organization (UNESCO). More specifically, the region around the reef, mineral-rich soil in northeastern Queensland (Australia), has been developed by Australian and foreign mining companies. So the coal, Australia’s second largest export (amassing a whopping AUD 46.8 billion in 2011), can actually head to countries like China, ports as needed. The world’s largest coal-exporting port just so happens to be nearby.

The development of ports requires dredging, and that dredged soil is usually dumped at sea. The soil, rich in heavy metals, releases those metals into the water, and they slowly drift on to reefs, killing coral life.

Why does the World Heritage Committee care? Well the Great Barrier Reef is on the World Heritage List, along with 980 other properties in 160 countries around the world. Does that automatically give the World Heritage Committee, a body whose headquarters is in Paris, and just so happened to be sitting in Cambodia last June, any authority to tell the Australian people and government that they cannot fully exploit their natural resources, in pursuance of their right to Permanent Sovereignty over Natural Resources?

As it turns out, yes. That is what international heritage does: creates exceptions to States’ sovereign rights so certain goods, deemed worthwhile, can be safeguarded for generations to come. UNESCO, established in 1946, has since its establishment pursued the objective of protecting and safeguarding heritage. To this effect, it has passed on a number of international instruments, including recommendations, declarations, and a number of treaties. Of these, five are particularly relevant:

These conventions, spanning 50 years, present on their own an important record of the evolution of this field of international law, and of international law more generally.

When it comes to the field specifically, the titles of these instruments alone already signal to one of the most important changes, the shift from cultural property to cultural heritage. This shift means distancing from notions of property and ownership, and a move towards stewardship of these goods. They mirror, to a certain extent, the consolidation of human rights internationally, which, at least if Samuel Moyn is to be believed, only really took off in the 1970s.

More importantly, and closely related, this shift also prefaces a shift that took place in the field in 2003, when the Intangible Cultural Heritage Convention was approved. This instrument had been in the minds of some for a long time: the first mention to the need for such a convention dates back at least to the 1970s. And it responds to an important gap: protecting cultural manifestations which do not necessarily have a permanent physical presence. The fact that they do not have a permanent physical presence does not mean they are any less important than, say, the Great Barrier Reef. They are in fact perhaps even more important, as they are closely connected to identity. Because intangible heritage does not exist externally, it must exist internally, close to the heart of identity.

Also known as living cultures, intangible cultural heritage means “the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.”

More specifically, it safeguards heritage as a process, as opposed to its icons. Physical manifestations of heritage are important, to be sure, but what matters most is how people connect to heritage, and the ways in which this connection influences people’s relationship to the environment, to human rights, and others. This notion reinforces the shift in UNESCO away from heritage as a symbol of sovereignty to heritage as a symbol of shared humanity. In international law more generally, it is another instance of the erosion of sovereignty in favor of a cosmopolitan ideal where peoples, and not necessarily States, coexist in full harmony.

This brings us back to the Great Barrier Reef. Protected under the World Heritage Convention, it is still formally protected as a site, and not as a process to which people feel connected. However, people’s connections to their heritage, and the process through which this connection is entrenched, is becoming more and more part of the equation even in protecting heritage. The notion of heritage as a process, enshrined in the 2003 Intangible Heritage Convention, is spreading to other heritage regimes, and triggering the rebirth of the field, from monuments and sites to living cultures. In the Great Barrier’s case, it is now less about the Reef itself than it is about what it means for our shared humanity. The good at stake is not only coral reefs, it is now the Reef standing for a humanity hopeful in a sustainable future, hopeful in reverting the negative effects of development, and saving the reef from ourselves, for the sake of present and future generations.

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Subscribe to only law articles on the OUPblog via email or RSS.Image credit: Great Barrier Reef. Photo by NickJ. Creative Commons License via Wikimedia Commons.